Under the Family Medical Leave Act (“FMLA”), eligible employees are entitled to take up to 12 weeks of protected leave every year to attend to certain medical and family matters and up to 26 weeks to care for a family member injured during military service. Although the FMLA undoubtedly has made it easier for many employees to balance job requirements and family responsibilities, some employees are ineligible for benefits provided by the FMLA. Employees that have not worked for their employer for 12 months have not worked 1,250 hours for their employer in the last 12 months, or work for private employers with less than 50 employees within a 75-mile radius are not entitled to leave under the FMLA. This means that many new employees, part-time employees, and employees of small companies still risk losing their jobs if they need to take time off work to respond to family or medical needs.
Employees who are eligible for FMLA leave are generally entitled to be restored to their former job (or to an equivalent job) upon the completion of their leave. However, a select group of employees may be surprised to learn that, despite being eligible to take FMLA to leave, they do not necessarily have the right to reinstatement after their period of FMLA leave concludes. This subset of employees—who are referred to as “key employees” by the FMLA—are FMLA-eligible employees living within 75 miles of an employer’s workplace and earning a salary in the top 10% of employees at their company or organization. Although key employees can take leave under the FMLA, their employer is not required to reinstate them if the employer finds that reinstatement would cause “substantial and grievous economic injury” to their operations. Frustratingly, there is no precise test to determine whether an employer would experience this level of injury, and federal regulations offer little guidance on the types of qualifying situations.
Although the FMLA gives employers some wiggle room when it comes to key employees, there are several regulations that employers must follow if they plan to deny reinstatement to a key employee. If you think you might qualify as a key employee and you plan to take FMLA-leave, keep the following in mind:
- Your employer must give you written notice that you qualify as a key employee and that you might not be entitled to reinstatement. You should receive this notice when you notify your employer of your need for FMLA leave or when your leave commences, whichever is earlier. If your employer needs time to determine whether you are a key employee, they must give you notice as soon as is practicable.
- Your employer must give you written notice if it determines that your reinstatement would cause substantial and grievous economic injury to its operations. Your employer must explain how it made this determination and must explain that it intends to deny you reinstatement upon completion of your FMLA leave.
- If you are already on FMLA leave when your employer determines that your reinstatement would cause substantial and grievous economic injury, your employer must provide you a reasonable amount of time to return to work.
- If you do not return to work after learning that your employer plans to deny you reinstatement, you are still entitled to request reinstatement at the end of your leave period. At this point, your employer must again determine whether reinstatement would cause the requisite level of injury based on your individual circumstances.
Your employer may lose the right to deny your reinstatement if they fail to comply with these regulations, even if they can prove that reinstatement would cause them grievous and substantial economic injury. If you believe that your employer did not give you proper notice or did not give you a reasonable opportunity to return to work, you should seek advice from an attorney who specializes in employment law.
Attorneys at Sanford Heisler Sharp are knowledgeable of employment law and are well-positioned to provide counsel on the FMLA. Contact one of our firm’s offices today.